- S.D.Miss.: Plain view of alleged drug residue was apparently false and a “comedy of errors”
- D.Mont.: That a motion to suppress would fail is a reasonable strategy decision for defense counsel
- NY Bronx: No SW needed to test abandoned DNA
- OH4: Mere sleeping visitor in apt has no apparent authority to consent to search
- WaPo: Opinion: Breonna Taylor’s death sparked remarkable changes to no-knock raids across America
online since Feb. 24, 2003
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Fourth Amendment cases,
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Author Archives: Hall
“The answer to this question doesn’t hinge on ‘whether the dog sniff occurs before or after the officer issues a ticket’ but whether the dog sniff ‘prolongs’ the stop. [Rodriguez] at 357. The answer today is undoubtedly no. Deputy Samuelson, … Continue reading
“As outlined above, Smith has put forth no evidence that he could have made a successful Fourth Amendment challenge to the stop and search of his vehicle. Even if he did, Smith could not demonstrate prejudice. As noted above, Trooper … Continue reading
E.D.N.Y.: Stop in the recheck line at JFK shortly after clearing customs was still within the border search area
Defendant’s stop in the recheck line at JFK shortly after clearing customs was still within the border search area. United States v. Newton, 2021 U.S. Dist. LEXIS 195145 (E.D.N.Y. Oct. 8, 2021). Reversed yet again for lack of proper findings … Continue reading
A firearm in defendant’s bedroom is at least probable cause for constructive possession. A search warrant for the premises here permitted police to break into a safe that could have held the object of the search. United States v. Mitchell, … Continue reading
On four corners review of the affidavit for search warrant, “This Court concludes that the statements made in the affidavit about Defendant living at the Euclid address were not untruthful or recklessly made; therefore, they permissibly allowed a judicial officer … Continue reading
“From all the foregoing, Officer Lojacono could reasonably believe that there was a fair probability that the amount of marijuana he saw in the car exceeded the legally permissible amount” of two ounces. Thus, the automobile exception applied. Harris v. … Continue reading
It was reasonable for officers to conclude that reasonable suspicion existed when they arrived within 30 seconds of a Shotspotter alert. “This immediacy also limits the possibility that the culprit (or culprits) could have fled before the officers arrived. In … Continue reading
Neither the affidavit nor search warrant apparently sufficiently limit the search. The court has difficulty applying the good faith exception without a hearing on the motion to suppress. United States v. Mokbel, 2021 U.S. Dist. LEXIS 191789 (S.D.Tex. Oct. 5, … Continue reading
OH9: ‘A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. Terry accepts the risk that officers may stop innocent people.’”
“‘A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct. Terry accepts the risk that officers may stop innocent people.’” State v. Kleintop, 2021-Ohio-3584, 2021 Ohio App. LEXIS 3493 (9th Dist. Oct. 6, 2021). … Continue reading
Three weeks passed in a murder investigation between officers thinking they might have to search and getting the search warrant. Other search warrants were obtained in the interim, and the investigation was ongoing. The delay was reasonable. United States v. … Continue reading
CA6: Def counsel not ineffective for not challenging car search on curtilage from 2008 under Jardines and Collins
Defense counsel considered and chose not to file a motion to suppress. At the time (2008) the law was less clear than now about automobiles on the curtilage and computers in the car as a “container.” Jardines and Collins came … Continue reading
The court sua sponte reconsiders its prior denial of a motion to suppress for a Franks violation and grants it. The critical paragraph in the affidavit identifying defendant was clearly misstated. United States v. Hallman, 2021 U.S. Dist. LEXIS 191780 … Continue reading
“Based upon the magnitude of the facts described in the search warrant affidavit, the issuing judge was justified in drawing a reasonable inference that physical evidence of Defendant’s alleged robberies would be found at his home. Defendant’s charged crimes, two … Continue reading
Two officers in two cars pulled up on defendant walking down the street with another known druggy. The officers and defendant knew each other because they’d arrested him before. The trial court did not err in finding this was a … Continue reading
The delay between the search and the seizure of defendant’s cell phones seized on his arrest was 101 days long, but, compared to the reduced privacy interest in the phone because of evidentiary value, it was not constitutionally unreasonable. United … Continue reading
A drug dog’s nose through a car window before alerting is a search and a Jones trespass. De minimis, yet, but still a trespass. There was no probable cause for the automobile exception, and the state waived standing by not … Continue reading
The street tip officers got was transmitted now third hand to the stopping officer. The tips were unremarkable about their credibility and weight. The court finds no reasonable suspicion for defendant’s stop. United States v. Joyner, 2021 U.S. Dist. LEXIS … Continue reading
Defendant fled up stairs when the police entered on a search warrant. He was captured finally on the third floor landing and was brought downstairs. A gun was found where he was lying on the floor. It was abandoned. United … Continue reading
A statutory violation is not subject to suppression unless it also shows a violation of the Constitution. “Suppression is a remedy only for a violation of the Fourth Amendment, which in turn, only requires that a search and seizure be … Continue reading